Tag: law

SB 1454: AZ House views legislator misconduct as “another day at the office”

In response to today’s Arizona Republic article, More bills on HOAs expected next year, by Caitlin McGlade I posted the following comment —

The real issue here is the ethical conduct of a legislator who violated the constitution to get a  special interest bill put into law, her 3rd try.  “I have a responsibility to the stakeholders” Ugenti told the Senate GOV committee (‘stakeholders’ are the spcial interests and does not include homeowners). And, the subsequent “no harm, no foul” attitude of the House of Representatives to treat Ugenti’s conduct as just another day at work.  WRONG!  See details at https://pvtgov.wordpress.com.

“Ethics” deals with right and wrong, and the House is saying this was not wrong by not pursuing disciplinary action per House Rule 1, because it happens all the time.  Is the Legislature saying it is above the law, above the Constitution? That it can do as it pleases?  Recall the anger that erupted regarding the former State Senator Bundgaard highway incident where disciplinary action was sought. He resigned instead of testifying before the Ethics  Committee.  But, not here with a direct violation of the Arizona Constitution.

To clarify the article, I was following Ugenti’s failed forerunner bill, HB 2371, that was incorporated into SB 1454 thereby making it unconstitutional.  It was done on the last day of the session in the wee hours of the morning (the session ended at 12:59 AM). By hiding the “HOAS” subject from the title it prevented  the public from reacting to the bill.  And there was time to write Gov. Brewer before she signed it.

Many believe that there was some good and some bad in the bill, but sadly its invalidation was the result of a direct violation of the law.  The end does not justify the means.

With its failure to discipline Ugenti, the Legislature cannot claim to be a legitimate government.  Political scientists and philosophers maintain that the legitimacy of a government rests in fair and just laws, and not in the illusion of justice. 

In his analysis of Machiavelli’s The Prince, Hadley Arkes wrote,

“The founders understood that the principal mission of government was to secure people in their natural rights — to protect them against the lawless private thugs as well as of ill-intentioned legislators.”

SB 1454: Machiavelli at work in the AZ legislature – Part 1

Part 1. Rep. Ugenti, Senator Griffin and lobbyist Sandquist 

(See Part 2).

Back in July I commented about SB1454 and wondered whether the Constitution or Machiavelli was alive and well in the Arizona Legislature.  In the subsequent two months I’ve come into possession of additional information on the events surrounding SB 1454 and its predecessor, HB 2371, and the underhanded manner in which it became an unconstitutional law. 

This post elaborates on the above commentary, which should be read first as it provides background information. This post also provides insight on how a legislature really functions, and undoubtedly how your legislature functions with respect to HOA legislation.

Furthermore, for a better understanding of the events the reader should view my video of the HB 2371 hearing before Senator Griffin’s GE committee.  It includes some interesting statements between Rep. Ugenti, who sponsored HB 2371, and Griffin; and between the HOA manager association lobbyist and Griffin. (The lobbyist’s statements begin at 9:13 into the 11 minute video). 

Please pay attention not only to their words, but to their body language as well. Listen to their arguments, but closely examine what is being said “between the lines.”

 

A.        Representative Ugenti

The March video of Senator Griffin’s hearing shows a perky Ugenti exuding confidence. She makes use of the special interest mantra, “stakeholder,” and states how all the stakeholders met and agreed upon the bill. She basically tells the committee that they are vendors (“stakeholders” refers not to homeowners, but to all those vendors who are making money off the HOA and off the homeowners).  The problem is, is that these vendors are daring to set legislation affecting the rights of homeowners that serve their own agenda.  Yet no committee member asks, “Where are the homeowners?”

Ugenti stated that each year there was “a plethora of personal HOA legislation”[1] and tried “to spare the [committee] members the constant agony of many personal pieces of HOA legislation,” as contrasted to the industry legislation. Ugenti also said that she “felt very responsible to the stakeholders.”

 

B.        Senator Griffin

Senator Griffin is also the Senate President Pro Tempore, second in line in the leadership hierarchy. The AZ Legislative Manual states that, “the chief duties of these officers are to preside over Senate and House proceedings and to otherwise assume the duties of the President and the Speaker when they are absent from the Legislature.”  

Griffin played a role in two separate incidents.   The first, see (C) below, is her withdrawal of an amendment to HB 2371, thereby allowing HB2371 to go on the Consent Calendar. This calendar leads to a direct vote by the Floor without further debate by all the representatives. However, it was objected to being on the Consent Calendar, which forced the bill to be debated by the Committee of the Whole (COW).  The bill was never debated and never came to a vote; it died in the Senate.

Second, having faced defeat in her bill Ugenti once again obtained the co-operation of President Pro Tem Griffin. Griffin added the failed HB 2371 HOA amendments to HB 2518 (Rep. Olson was the Sponsor), now before the Senate.  The bill passed the Senate and was sent to the House where a Conference Committee was recommended – the House did not accept the Griffin/Ugenti amendment.  This time, the House failed to hear the amended HB 2518 and it, too, died along with Ugenti’s HB 2371 HOA amendments.[2]

  “The role of morals in politics is mainly to cultivate illusions . . . politics is merely appearance and morality is merely pretense.” (“Machiavelli and America,” Hadley Arkes, p. 104, The Prince (Yale University Press, 1999)).

 

 C.       Jeff Sandquist, AACM lobbyist

At the end of the above mentioned video (see Part 1), Jeff Sandquist, lobbyist for the Arizona Association of Community Managers (AACM) addressed the committee.  AACM stood to gain much from HB 2371, which would allow its members to represent HOAs in small claims court and before administrative law judges at OAH (Office of Administrative Hearings).  State certified legal document preparers (paralegals) are not allowed this right. There were no provisions in the bill for licensing, training, or educating property managers to adequately represent HOAs. Nor equal representation for homeowners.

Note the very friendly dialogue between Sandquist and the Chair, Griffin, which is out of order for a committee hearing.  “Tell your Mom hello for me.” Griffin mentions that making an amendment got her to see her “buddy” Sandquist.  He thanks her for not offering her amendment.

Sandquist also vaguely spoke about how the courts would like to see a provision moved to another section, implying an acceptance by the courts. It also implies a recognition of a separation of powers issue on granting HOA managers representation rights.

Two days after filing the complaint, about a month after the Governor signed SB 1454, a Supreme Court Rule 31 change was requested seeking an exception for HOA managers to be able to represent HOAs in small claims court (still pending).

[1] I digress. My emphasis reflects, to good extent, homeowners failing to see the broader picture beyond their HOA problem, such as raising substantive issues of constitutionality. Ugenti is saying that homeowners don’t really understand the problems with HOAs, which only the HOA industry special interests can solve. It is evident that this is the view held by all state legislatures across the country. Homeowners have failed to deal with this reality.

[2] In my 13 years I have seen isolated cases in various legislatures in different states where the right and ethical action was taken and legislation was defeated or passed as appropriate, as we see here with these 2 bills.  But, on the whole, far too few.

AZ Rep. explains failure of HOA reform legislation

I feel that my Footnote 1 from an upcoming commentary on SB 1454 should stand by itself. Here’s the paragraph and the Footnote.

Rep. Ugenti stated that each year there was “a plethora of personal HOA legislation” and tried “to spare the [committee] members the constant agony of many personal pieces of HOA legislation,” as contrasted to the industry legislation.

 Footnote 1.  I digress. My emphasis reflects, to good extent, homeowners failing to see the broader picture beyond their HOA problem, such as raising substantive issues of constitutionality. Ugenti is saying that homeowners don’t really understand the problems with HOAs, which only the HOA industry special interests can solve. It is evident that this is the view held by all state legislatures across the country. Homeowners have failed to deal with this reality.

A good part of this failure must be laid on the leaders of the homeowner rights advocacy movement. The leaders who appear, while paying lip service to constitutionality issues, to have failed to provide the necessary and adequate guidance and direction to accomplish HOA reform legislation.  Instead, take for example the recent SB 1454 post and comments on the Privatopia Papers where portions of just one news article are quoted. The quotes indicate that the plaintiffs had “done wrong to homeowners” by winning their constitutionality challenge. The challenge was against certain actions taken by a rogue legislator with respect to an HOA bill. The balancing and explanatory parts of the article were not quoted.

Fred Pilot, a long term participant in HOA reform issues commented about “So does this mean local governments can continue to utilize CID mandates?”, which is totally irrelevant and non-applicable to the victorious lawsuit.  Or to his biased quote from the article.  “What has “CID mandates” got to do with the article?  And attempts to clarify the matter as to the implied, “the plaintiffs have harmed the homeowners when they won”, resulted in their non-publication by the owner, Evan McKenzie.

Yet, McKenzie wrote that it was a fair question deserving an answer, but apparently not as a comment on Privatopia Papers. He wrote “my understanding is that SB 1454 . . . prohibited municipalities and planning and zoning commissions from requiring developers to create HOAs.”  McKenzie lacks the understanding that these provisions were twice killed in this legislative session; and that Ugenti had to underhandedly get the bill passed in the wee hours of the morning on the last day of the session.  But, I guess that has no bearing in this matter. It was only us evil plaintiffs who done homeowners in, under the principle that the end justifies the means.

 Not a word about how this lawsuit sent a message to pro-HOA legislators and lobbyists that they can’t get away with such flagrant abuse of the laws. Not a word. But the charges stand, unanswered on the Privatopia Papers.

 Unless the leaders get their act together, the arguments and implications of Ugenti’s quote above will continue to dominate attempts at HOA reforms.

Disciplinary action sought against AZ legislator in SB 1454 HOA amendments

This past Wednesday I asked the Arizona Speaker of the House and House Ethics Committee to commence disciplinary proceedings against Rep. Ugenti for her role in causing SB 1454 to be declared unconstitutional.   I also asked that a vote be called under House Rule 1 to expel Rep. Ugenti for the manner in which she added her failed HB 2371 HOA amendments to SB 1454 in the waning hours of the legislative session.

In addition to the legislative records, my argument was supported by the Statement of Facts in the complaint, Staropoli and Brown v. State of Arizona, and the statements made by our attorney in his July 23rd appearance on Horizon PBS.  There are five documents found on the legislative public info website, ALIS, that warn legislators against placing more than one subject in a bill.

I further pointed out the need to look into why there are two different versions of the Bill Summary for SB 1454, one with “HOAS” in the title and one without.  The logical conclusion is an intentional removal of the word from the title.

I concluded my email to the Speaker with,

The Legislature cannot sit idly by and allow a flagrant violation of the Arizona Constitution to go unpunished. . . .  It must send a message that such ardent belief in a bill does not allow for the law to be broken and that the end does not justify the means.

AZ Attorney General admits SB 1454 HOA to be invalid and without effect

Pursuant to a consent agreement with the State of Arizona,[1] the Attorney General’s office admitted that SB 1454 violated the AZ Constitution and sections of SB 1454 relating to certain HOA statutes to be invalid and without effect on September 13th.  SB 1454 violated Article 4, Part 2, Section 13 of the Arizona Constitution.  On July 19, 2013 plaintiffs George K. Staropoli and William M. Brown had filed suit against the State of Arizona, CV 2013-009991,[2] seeking a declaratory judgment that SB 1454 violated the Constitution.

“The founders understood that the principal mission of government was to secure people in their natural rights — to protect them against the lawless private thugs as well as of ill-intentioned legislators.” Machiavelli and America, Hadley Arkes, p. 145, The Prince (Yale University Press, 1999).

The invalidated Sections are:  2, 3, and 15 – 17, 19 – 21 of SB 1454 (Ariz. Sess. L. Ch. 254). These sections affected the following Arizona Revised Statutes:  9-461.15, 11-810, 22-512, 33-1250, 33-1260.01, 33-1261, 33-1806.01, 33-1812, and 41-2198.01.  We believed that Section 18, adding ARS 33-1261(E) to the Condominium Act, is about political signs and relates to public elections. We agreed it is covered in the title subject of “elections” and is a valid statute.

Particularly disturbing was the amendments that granted special powers to HOA managers to represent HOAs in small claims court and in OAH hearings, powers that state Certified Legal Document Preparers do not possess. The litigation rights of homeowners were put at a disadvantage because they could not also have an untrained and unlicensed third-party represent them.

Many may believe that SB 1454 had HOA amendments that would benefit homeowner rights and this lawsuit removed these benefits.  The loss of these perceived benefits lies not in this victory, but in the acts of Rep. Ugenti who is responsible for attaching, at the last legislative session, her defeated HB 2371 to SB 1454.  SB 1454 now became a bill with two subjects in violation of the constitution.[3]

The consent agreement will become binding pending acceptance and signing of the order by the Superior Court judge, expected before the 13th.

I would like to thank Executive Director Tim Hogan, Staff Attorney Joy Herr-Cardillo, and the Arizona Center for Law in the Public Interest for their outstanding support of the people.

 

References